From November 2019 to March 2020 the Home Office held a public consultation on measures to criminalise trespassing when setting up an unauthorised encampment in England and Wales. The Magistrates Association (MA) welcomed the consultation process on the proposed changes and responded to the consultation.
It is the role of Parliament to decide whether a new criminal offence is necessary. It is the court’s role to deal with anybody who is prosecuted for a criminal offence fairly and proportionately according to the law decided by Parliament and using the appropriate sentencing guidelines.
The MA recognises that encampments on public open spaces can disrupt communities’ normal way of living and encampments on private land can prevent use of that land by the landowner. Farmland may be unusable for some time afterwards, affecting business. Use of spaces such as leisure centre car parks may drive away customers. The MA is further aware that in many cases there is additional damage to property and a high cost to cleaning up after a camp moves on. It also recognises the difficulties in bringing charges under current legislation where an individual perpetrator cannot easily be identified.
However, the MA would point out that it is not aware of any robust evidence base that illustrates the need for a new criminal offence. The lack of charges under current laws may point to charging difficulties that would persist under the new legislation such as identification of individuals.
The MA would recommend that if the intention of creating a new offence is to specifically target those who knowingly enter the land without the owner’s permission with the purpose of residing on it, then any new legislation should be as narrow as possible to avoid the unintentional criminalisation of people.
The MA would also point out that for the Crown Prosecution Service to bring a criminal offence to court, it must be in the public interest to do so. For this to be the case, it may be necessary to show that the encampment, or those on the encampment, have caused harm or negatively impacted on others. This could include harm caused to the landowner, including psychological harm and financial loss, property lost or damaged, and harm caused to the environment and/or animal(s).
The MA is concerned that potentially criminalising all people living in unauthorised encampments would be a disproportionate approach. To mitigate the risk of criminalising all those residing in unauthorised encampments, including children and vulnerable adults, any new offence would need to be linked to evidence of an individual’s decision-making in relation to establishing an unauthorised encampment.
The 2017 Lammy Review highlighted that people from Gypsy, Roma and Traveller communities face a high level of disproportionality. It also highlighted the importance of minority groups having confidence in criminal justice agencies. It is important that any criminal justice response to unauthorised encampments is not just seen as discriminating against a minority group. The MA believes that an increase in police powers must be accompanied by a corresponding increase in the scrutiny and oversight of their use to allow for appropriate assessment of potential negative impacts. In the interest of openness, such charges should be brought to court rather than dealt with by out of court disposals.
The MA is particularly concerned that these proposed powers could force communities to suffer increased displacement. This is likely to have a negative impact particularly on children’s wellbeing and education as they will be unable to attend their original schools and GP surgeries. The MA suggests that there must be a clear process with oversight structures in place to make sure these decisions are made fairly and with a complete risk assessment, taking into account all likely consequences, and those affected must have an opportunity to object. Factors that must be considered include the increased distance, time and cost it would take for a child to reach school or healthcare as a result of being moved. Any such move should only be considered when detailed plans for alternatives are in place, particularly for small children under the care of health visitors.